Statement made on 11 December 2009 by Senator Joan Fraser
Hon. Joan Fraser:
Honourable senators, I support Senator McCoy's motion for the previous question. However, as His Honour reminded us last night, this is a debatable motion, so I will use this opportunity to respond to the careful speech given last night on the main motion for third reading of this bill by Senator Wallace, and in so doing, explain why I support Senator McCoy's motion.
Senator Wallace gave a long speech, in large measure, about the amendments that were made to this bill by the Standing Senate Committee on Legal and Constitutional Affairs and endorsed only the other day by this chamber. I believe that there may be misunderstandings in the wake of Senator Wallace's remarks, and that is why I rise. It is, in essence, to correct what I believe to be misunderstandings that may exist and some that I know exist in the public mind about what the committee did and what the Senate then correctly, in my view, endorsed.
In its consideration of Bill C-15, the Legal and Constitutional Affairs Committee grappled with three problems that tended to inform its consideration of the whole bill, the first of which is that, of course, as we have been repeatedly reminded, the drug business in Canada is a dreadful, iniquitous affair that carries terrible consequences for many Canadians. No member of this chamber, I am sure, wishes to stand in defence of criminal organizations that prey upon the most unfortunate in our society; those who are addicted to drugs. Nobody here wants to defend serious criminals committing serious offences.
However, there are problems. The first problem is that, while this bill is concerned in large measure with trafficking, trafficking itself, as I observed the other day in debate, is broadly defined in our law. Trafficking does not only mean selling large quantities of heroin or other dangerous drugs. It does not only mean selling any quantity of any drug. Trafficking means, in law, "to sell, administer, give, transfer, transport, send or deliver the substance, to sell an authorization" — that would be a permit — "to obtain the substance, or to offer to do any of the above."
In plain language, honourable senators, offering to give your brother-in-law a joint for his birthday constitutes trafficking. That is at the low end extreme of the case, but we have to bear in mind that the range of activity covered by the definition of trafficking is broad when we come to consider this bill.
A second problem that arises immediately when one contemplates Bill C-15 as it came to the committee is that in connection with the production or cultivation of marijuana plants, the bill sets up three categories. All the categories are broad, but the breadth of the first one creates difficulties. The bill creates an escalating series of mandatory minimum sentences for the production and cultivation of a certain number of plants, and the first category is more than five but fewer than 201; from six to 200. That category is broad indeed. We have been reminded frequently that someone who is growing 199 marijuana plants is probably not growing them only to have a joint in the den on Saturday night. Nobody would disagree. On the other hand, someone who is growing six plants is probably not a charter member of an international criminal organization.
The category itself is so broadly defined that it immediately created problems when it came to the imposition of mandatory minimums because the nature of the offence was so likely to be different at the low-end of the scale from what it would be at the high end of the scale. These issues were the difficulties your committee faced.
Your committee decided that it would tackle that difficulty in the following way: for simple production for trafficking, with no other aggravating factors, of between five and 200 plants, the minimum penalty would not be applied. The criminal law in all its weight would continue to exist. It would still be a criminal offence to produce marijuana for purposes of trafficking, but the amendment would restore judicial discretion. It would restore to judges the power to determine whether somebody at the six-plant end of the range deserved to have the whole weight of the book thrown at them or whether the whole weight of the book should perhaps be reserved for people engaged in the higher end of the scale.
I stress to you, honourable senators, not only that the criminal law will continue to apply, as it now does, to people cultivating the number of plants in that category, but also that your committee retained the mandatory minimum proposed in Bill C-15 for cultivation of that number of plants, 6 to 200, if aggravating factors were present, the aggravating factors being things like endangerment of public health or safety, involvement of a minor, and use of a weapon or a trap or other dangerous device. These things are all bad in their own right and also tend to be indicators of rather more than individual, low-level, not-serious-in-criminal-terms offences. If one of those aggravating factors were present, even if someone was growing only five plants, that person would face a mandatory minimum of nine months in prison.
I suggest, honourable senators, that the committee tried to stay as much as possible within the scheme outlined by the bill while respecting some of the basic principles of our judicial and criminal system.
It has long been accepted in this country that sentences need to be proportionate. In section 718.1 of the Criminal Code, this fundamental principle is stated:
A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
The code goes on to say:
. . . a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender . . .
It then goes on to set out some of those circumstances, including circumstances relating to Aboriginals that I shall refer to in a few minutes.
Furthermore, the Interpretation Act says the following:
Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.
Those are quotations from statutes, but they are also contained in the Supreme Court decision in the Gladue case to which Senator Wallace referred last night.
As Senator Wallace suggested, there is no question of inviting criminals to get involved in the business of producing 200 marijuana plants or less and not fearing imprisonment. Judges can — and, I am persuaded, would — impose prison terms for criminals engaged at the high end of that scale, but not for ordinary people at the low end of the scale. That, I agree, is unlikely.
I would suggest that no member of the committee had what Senator Wallace described as a preoccupation "about wanting to spare convicted marijuana growers who intend to traffick their product from serving time in jail." In light of my earlier remarks, I hope senators understand that this was not the position of the committee.
In reference to another amendment, the one about records of offences or imprisonment in the previous 10 years, Senator Wallace seemed to express surprise that the amendment referred to an offender "serving a term of imprisonment" for one year or more. That particular phrase was in the bill to begin with. The amendment did not change that language in the bill; that is the government's language. What the amendment did was specify that the term in question had to have been for one year or more.
Now we come to the matter of Aboriginal offenders. Surely there can be no more serious question for members of this chamber to consider. As we know, the Criminal Code now requires judges, when levying sentences, to take into account "all available sanctions other than imprisonment that are reasonable in the circumstances . . . with particular attention to the circumstances of aboriginal offenders." There have been numerous court decisions on this language, including, but not only, the Gladue case.
It may be worth quoting a little bit from Gladue that Senator Wallace did not. Let me start with a passage where the Supreme Court, after a long survey of the facts and the statistics and the findings of commissions and the findings of academic studies said:
These findings cry out for recognition of the magnitude and gravity of the problem —
— of the condition of Aboriginals in our justice system —
— and for responses to alleviate it. The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system. The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem.
That was written 10 years ago, honourable senators, and let me tell you, the problem is worse today.
Existing measures in the Criminal Code clearly have not solved the problem. However, Bill C-15, as it came to us, would have eliminated even that protection for Aboriginals and what the Supreme Court has termed their unique circumstances. Bill C-15 would have overridden that protection in the Criminal Code. Your committee heard devastating evidence to the effect that the circumstances of Aboriginals very often — not in every single case — are unique in Canada. One-size-fits-all does not work and is not just when it comes to sentencing Aboriginals.
We heard, for example, from a lawyer who practices in Iqaluit who asked us to imagine the case of a young man in a remote Inuit community who commits a drug-related offence, but there is no court out there. There may not even be a police station out there. Instead, what happens is what has happened in Aboriginal communities for 10,000 years in the North; the community handles it.
The Hon. the Speaker: I regret to advise the honourable senator that her allotted 15 minutes have expired.
An Hon. Senator: Five more minutes?
The Hon. the Speaker: Is it agreed?
Hon. Senators: Agreed.
Senator Fraser: Thank you, honourable senators.
The community handles it to the satisfaction of all. Everyone believes that justice has been done, and the little community moves on and mends the fabric of its life. Five or eight months later, a judge flies in with all of the attendant court clerks and lawyers.
Senator Rompkey: Perhaps interpreters as well, perhaps not.
Senator Fraser: The judge says to this young man: Well, I do not care if the community justice system has agreed that this matter is settled. I have to send him away for six months, and away may well mean South, thousands of miles from home, where there will not be interpretation and where there will not be programs to help. Neither he nor his community will benefit from that — quite the contrary.
Your committee, therefore, brings in an amendment that would go some way to restoring the protection that now exists in the Criminal Code. That amendment states that a court would not be required to impose a minimum term of imprisonment the offender is Aboriginal — could, but would not be required to — if the sentence would be excessively harsh because of the offender's circumstances and if another sanction is reasonable and available in the circumstances.
Honourable senators, this is not as broad a protection. This is arguably a substantially narrower protection than is now available in the Criminal Code. However, it is a vastly better protection than simply saying everyone, no matter their unique circumstances, will get slapped with these minimum penalties. That was the position your committee took.
It was not a position of giving anyone a free ride. It was not the creation of a new double standard in justice. It was an attempt to reflect what not only our law but our courts up to the highest level have said over and over again: In Canada, justice takes into account the circumstances of the case. Your committee attempted to say, in each case under this bill, if the crime is serious, it will receive a serious penalty. If it is less serious, the judge, who is the best person on the spot able to assess the circumstances, will be able to do so. Your committee acted in the view that that would be the best way to serve justice and the Canadian community. Your committee did not believe, and I do not believe any senator believes, that any of this is being soft on crime.
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